Tuesday, July 28, 2015


The initial medical decision in Social Security Disability (“SSD”) cases has been delegated to state agencies, which in New York State is the Office of Temporary Disability Assistance (the “OTDA”). The OTDA goes to great lengths to ensure that SSD claimants get denied. 

I represent a 50 year old with scleroderma, sarcoidosis, Raynaud’s Disease, arthritic knees, back and hands, left leg nerve damage, and a blind right eye. He earned over $100,000 annually working as a steamfitter for 31 years, which required lifting up to 100 pounds. Common sense tells you that anyone who worked that long at that job, earning that amount of money, stopped only because he was no longer able to continue. 

You might think that the OTDA lacks common sense because it denied the claimant SSD benefits. However, a review of the Social Security Administration (“SSA”) claim file reveals that the OTDA acted in bad faith, and actually committed fraud, in order to deny the SSD application. 

Last August, the OTDA told the claimant that he had to go to a consultative exam (“CE”) for sarcoidosis that would have required him to travel over 3 hours and 140 miles from his home. The claimant lives in eastern Suffolk County, and the CE was scheduled in Poughkeepsie, NY in Duchess County. In other words, the OTDA was telling the claimant to travel across Suffolk County, and the Nassau, Queens, Bronx, Westchester, and Putnam Counties to get to the CE in Duchess County. That CE demand was beyond reasonable, and could only have been made in bad faith. 

After I brought the unreasonableness of the CE location to the OTDA’s attention, it rescheduled the CE, but did so at the same location, which it did three days later, and then about four weeks later. The OTDA refused to send the claimant a notice that rescheduled the sarcoidosis CE at a reasonable location, although it managed to schedule a psychiatric CE nearby his home, which the claimant attended. However, the claimant never alleged that he had any mental impairment of any type. 

The OTDA denied the claimant’s SSD application on the grounds that the claimant did not attend the CE. While scheduling the CE over 3 hours and 140 miles from the claimant’s home was malevolent, a review of the SSA claim file shows that the OTDA’s conduct was even worse. 

When scheduling a CE, the OTDA is required by law to ask a treating doctor to perform it. An OTDA disability examiner named Y. Ellison-Nixon claimed that a treating doctor was asked to perform the CE, but that the doctor “does not accept the state approved vendor fee.” Ellison-Nixon lied. The claimant has over a half dozen medical specialists, and the OTDA never asked any of them to perform a CE, let alone asked any of them if they would do so for a specific fee. Ellison-Nixon committed fraud, that is, knowingly doing or saying something that is false, in order to evade the legal obligation to ask a treating doctor, as the preferred source, to perform the CE. While the Social Security hearing office will undoubtedly reverse the OTDA denial on appeal, the claimant’s SSD benefits should not have been delayed. This is precisely the type of incident that should be reported to the SSA Inspector General.

Sunday, July 26, 2015

Proper Proffer Procedures

In some disability cases, the Social Security Administration (“SSA”) may ask one of its doctors, referred to as a Medical Expert (“ME”), to provide written answers to written questions, which are referred to as interrogatories. When an Administrative Law Judge (“ALJ”) receives an ME’s interrogatory responses, the ALJ must “proffer” the evidence to the disability claimant’s attorney. The purpose of the proffer is to provide the opportunity to object to, comment on, or refute the proffered evidence, submit written questions to the ME, or insist on the opportunity to cross-examine the ME. 

I represent a 49 year old former typist seeking Social Security Disability (“SSD”) benefits. Prior to the hearing, the ALJ received interrogatory responses from an ME; however, the ALJ never proffered them to me in accordance with the SSA Hearing, Appeals, and Litigation Law Manual (“HALLEX”). I learned about the interrogatories when reviewing the SSA eFolder for the claimant. 

The interrogatories provided for a less than sedentary work capacity, which corroborated the opinions of the claimant’s doctors that the claimant was disabled. A vocational expert (“VE”) at the hearing testified that based upon the interrogatory answers, the claimant was not capable of working. 

The failure to follow proffer procedures raises two concerns. First, since all of the medical opinions supported the claimant’s entitlement to SSD benefits, why was a hearing needed? Because the ALJ did not proffer the evidence, did not approve SSD benefits without the need for hearing, and believed that testimony from a VE was needed, I had to assume that the ALJ would not accept the ME’s opinion. Second, if the responses had been unfavorable for the claimant, then the hearing would have deprived the claimant of due process.

Tuesday, July 14, 2015

Report IMA & DDS Fraud To Inspector General

When a Social Security hearing office receives a disability appeal, it sends the claimant form HA-L2, which is a Request for Hearing Acknowledgment Letter. At the bottom of the first page of Form HA-L2 in bold face type is the (800) 269-0271 telephone number for the Inspector General’s Fraud Hotline, in case you “Suspect Social Security Fraud.” Presumably, that warning is designed to intimidate claimants. 

In all my years representing Social Security Disability (“SSD”) claimants, I can think of only one instance of a claimant attempting to perpetrate a fraud. On the other hand, on a seemingly weekly basis, I find the Disability Determination Services (“DDS”) and its contractor, IMA, committing fraud. Claimants and their advocates should call the Inspector General’s Fraud Hotline when DDS or IMA fraud is suspected. 

One of my client’s eFolder became accessible today. A review of the eFolder revealed several instances of fraud by the DDS and IMA. 

First, a DDS examiner named V. Kumar wrote that the claimant’s doctors refused to perform a consultative examination (“CE”) for the state approved vendor fee. That was a lie. Neither Kumar nor anybody else from the DDS ever contacted any of the claimant’s doctors to ask them if they would perform a CE, let alone ask them if they would perform a CE for any particular fee. What makes Kumar’s fraudulent misrepresentation especially appalling is that I had sent a letter about the CE, which stated: 

"the treating physicians are ready, willing, and able to perform a CE, but you have not asked them to perform a CE. I have spoken with the claimant who has agreed to pay any difference between what you are willing to pay and the amount the treating doctor would charge. Therefore, do not falsely claim that a treating source refused to do the CE because of the fee involved."

If you have a case that is pending at a hearing office, I would suggest reviewing the eCAT report to see what the DDS examiner wrote.

The second fraudulent assertion that Kumar made was that the CE was needed because there was insufficient evidence to evaluate the claim. The file contains over a hundred pages of treatment records, functionality opinions, and diagnostic testing. To compound matters, I sent a detailed seven page single spaced letter to the DDS, asking them to identify any additional medical evidence that they claimed was needed to evaluate the claim. As always, instead of specifying a single piece of medical evidence they purportedly needed, the DDS simply sent a second CE notice, despite my having sent them that detailed letter, which among other things stated: 

"In order for me to have the chance to obtain the information that you claim you need, you need to clarify precisely what information you are seeking. Simply resending a notice with a new CE date fails to fulfill your responsibility to develop the record, and shows that you lack any valid reason for the CE."

Kumar’s third fraudulent misrepresentation was that stating “No RFC /MRFC assessments are associated with this claim.” Contrary to Kumar’s unambiguous statement, the eFolder contained, not one, but two, Residual Functional Capacity (“RFC”) assessments. In fact, the RFC from the claimant’s orthopedist appears in the eFolder twice. There was also an RFC from the claimant’s cardiologist. It was impossible for Kumar to have missed all three reports when reviewing the claimant’s file. Nonetheless, Kumar stated in no uncertain terms that no RFC assessment was in the eFolder. 

The fourth instance of fraud also concerns the CE. Kumar wrote that the claimant missed both CE appointments. As discussed below, that statement is demonstrably false. However, giving Kumar the benefit of the doubt, it is possible that Kumar was provided with the false information by IMA. 

In the eFolder is form DDD-4184, entitled CE Appointment Notice History. The form DDD-4184 states that the claimant did not keep the appointment for the CE. It is unclear who prepared form DDD-4184, but it is clear that whoever did so, committed fraud. The claimant has photographs of him entering the IMA offices. The claimant also has videotape of him inside the IMA offices, being told to leave by IMA. It is a blatant and undeniable lie that the claimant did not keep the appointment. 

As stated in prior posts, I would advise claimants to videotape their CE. There is nothing in the Social Security statute, regulations, POMS, HALLEX, or case law that precludes videotaping a CE. Furthermore, I secured a copy of the contract that IMA has with the DDS, and there is nothing in it that prohibits videotaping a CE.